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1815. The decision in Leer v.Yates the general lading? If an in

seems to stand upon legal, and, jury, why should not the owner HARMAN properly understood, upon partition it amongst the several

equitable principles. The harde parties according to their reGANDOLPH and Others. ship is incidental, and one of spective interests? Why, in

those rigours to which law, deed, is the owner entitled to from the necessary generality any compensation ? Each party of its provisions, is by its na- performs his duty in the conture subject. The consignee, tract. The consignee claims it is said, is ready to receive within the proper time, and the goods in the proper time; the owner delivers the goods he applies for them, and by the as soon as he is able. In order neglect of others, for whose to entitle himself to compensa. conduct he did not stipulate, tion for demurrage, he must he cannot obtain them. The claim under an express or imrunning days expire, and he is plied condition, or by some pocalled upon to pay a heavy sitive default on the part of the charge for demurrage. It is consignees. With respect to deadded, that this delay, so com fault, none is pretended ; and mon,

and indeed almost neces with regard to the contract, sary in the port of London, it is nudum pactum. The words must have been in contempla- which are supposed to create tion of the ship-owner, and, the obligation are the words of therefore, that the sufferance the captain, the servant of the of it is an implied condition owner, who signs the bill of of his contract; that this in- lading, and delivers it to the convenience, and of course shipper. The defendant does the implied condition, applies not sign it; but it is said, that still more forcibly to a ge- by accepting this bill of lading, neral ship; it is a misfortune and claiming the goods under pressing equally on both par. it, he accedes to the terms; ties, the freighters and the and that therefore this action

There is no ground may be sustained on the gefor the presumption of a de neral count for demurrage. It fault in the consignee. Why cannot be disputed that the acshould he be made responsible ceptance of the bill of lading where he has no controul ? binds the consignee to pay the Still less, why should he be freight, and any demurrage ocmade responsible for the de casioned by wilfulness or negfault of all other consignees in lect; but 'can it bind him to

owner.

any terms which the owner but it is delivered to the ship 1815. chooses to insert? At all events per abroad, and by him prethese terms are subject to an sumed to be transmitted in due HARMAN equitable construction, and mercantile course to the concannot in any way be ex

GANDOLPH signee at home; by taking to

and Others. tended to what is manifestly the goods, he accedes to the unreasonable,-that of ren terms of the bills of lading dering one consignee respon

under which he takes them, sible for the default of ano and concludes the contract by ther, for whom he does not executing it. Dobbin v. Thornstipulate, and over whom he

ton, 6 Esp. 16. Cock v. Taya has no controul. Again, be lor, 13 East, 399. fore the owner can call upon 2. In ordinary cases, where the consignee to answer in da demurrage is claimed, the mages for a nonfeasance, of question is twofold.

. Did the what he morally could not do, delay arise from the default he, the owner, must shew that of the freighter? Was it the he was ready to deliver; that act, or delictum, of the owner the goods were in a situation himself? But there is a middle to be capable of delivery at case, that in which neither is the time. This at least is a in default; and in which the concurrent, if not a condition question is, which party is precedent.

bound by the incidents of The answer to this argument chance, or of any 'cause not seems to be in substance: 1st. within his own controul. In That between the owner of the this case (which is the present) vessel and the consignee of the as the loss must be sustained goods there is no necessity for by one party, the inquiry is, an express contract. Though who is to bear it? And here there be no original privity of we must have recourse to gecontract between the parties, neral principles; a person who yet the taking of the goods hires any chattel, whether it from the ship under the bill of be a horse, a house, or a ship, lading is evidence of an agree may be said to detain it, if at ment, in ipso tempore, to pay the end of the stipulated time the freight, &c., according to he does not return it to the the terms of the bill of lading owner. He is responsible for That the bill of lading indeed all incidental circumstances is not signed by the consignee, which may prevent him from

1815. so doing. In the present case The cause of detention there.

it is totally an indifferent cir. fore is immaterial, if the owner HARMAN cumstance that the ship is a be not in fault. If it be inci

general ship; all and every dental, it is an incident beGANDOLPH and Others. one, each singly for himself, longing to the consignee; it is

is bound to clear within the his mischief, his loss, his mis.
stipulated time. If any one fortune. It is so much longer
do not clear his goods, no time beyond the contract taken
matter from what cause (the from the owner; and being the
ship being there with them) he casualty, if not the act of the
detains the vessel, and renders consignee, he must pay for it.
it impracticable for the owner Though there may be no mu-
to make use of her for other tuality or privity between the
purposes. Any one, therefore, consignees, yet, in regard to
in this default, is liable for the the owner, the delay or im-
detention of the vessel. Thus, pediment of one is effectually
in Randall v. Lynch, 2 Camp. the same as the delay or im-
352. it was determined by Lord pediment of all.
Ellenborough, that if by reason In respect to mercantile con-
of the crowded state of the tracts, however, whatever may
London Docks, a ship is de be the hardship in any parti-
tained there before she can be cular case, the mischief will
unloaded a longer time than not be extensive; as contracts
is allowed for that purpose by will gradually assume a form
the charter-party, the freighter suitable to all possible contin-
is liable for this detention to gencies.
the owner of the ship.

1815.

BARTON 0. GLOVER.

June 28.

Where a

person binds

breach of the

.SSUMPSIT.--Plaintiff and defendant were

coach proprietors, at Croydon. On the 2d himself in an of April, 1815, they entered into an agreement, pay a certain the substance of which was, that in consideration in case of a that Barton would pay to the defendant the sum terins of it on of 1751.; 501. to be paid in money, and the residue his part, and in bills of a month from the date of the agree- stated that ment, the defendant would withdraw his stage tioned is to be coach from the road, and not engage or concern liquidated dahimself in driving any other stage coach on the mages," Semble road from Croydon to London. The following' tion upon the was the clause in the agreement on which the Jury are bound question arose :

plaintiff the

considered as

to give the

whole money; and that such

“ And for the due and punctual performance of sum is site to this agreement, each of the said parties to these as a penalty, presents does hereby agree to bind himself to the ascertained other of them in the sum of 5001. to be considered between the

parties. and taken as liquidated damages, or sum of money forfeited or due from the one party to the other, who shall 'neglect or refuse to perform his part of the agreement.

" John GLOVER.

“ RICHARD BARTON. April 2, 1815.”

Best, serjeant, in addressing the Jury for the plaintiff, insisted that he had a right to a verdict for the whole penalty, in case he should shew a breach of the agreement. Fletcher v. Dyche, 2 T. R. 32.

1815.

BARTON

GLOVER.

The Solicitor General, contrà.—The 5001. is merely intended as a penalty. It is not because the parties use the term liquidated damages that, for every breach of the agreement however slight, the whole penalty can be exacted. Penalties can seldom be enforced conscientiously ; courts of law lean against them, and courts of equity relieve against them. He cited Astley v. Weldon, 2 B. and P. 316.

Gibbs, C. J.-There are a great many cases in which stipulated damages are contracted for, but in which neither courts of law nor equity will permit the parties to recover them. Neither of the cases cited comes up to the present. In Astley v. Weldon, there was no stipulation that the damages should be liquidated; and in that case there were several minor fines, which repudiated the idea that the whole penalty should be due for every breach. But in the present case, unless the damages are to be considered as liquidated, and definitively ascertained by the parties themselves, the clause in the agreement means nothing.

His Lordship said, he would reserve the point ; but the cause was afterwards referred.

Best and Copley, serjeants, and Puller, for plaintiff.

Solicitor General, and Lens, serjeant, for defendant.

[Attornies, Holt and F. and Allen.]

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